The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1887-04-22
THE INSURANCE CASE.
The Plaintiff Michiels Nonsuited.
An Appeal to be taken.

On the Supreme Court resuming
yesterday morning, Judge McCully gave
his decision, sustaining the motion by
Mr.. F. M. Hatch that the plaintiff, c.
Michiels, be nonsuited. His Honor
spoke as follows
The question argued and submitted
to the Court is, whether nonsuit
should be sustained on account of an
assignment Of the property having been
made by a bill of sale given to Mr..
Whiting, and the policy (of insurance.
hereby rendered void, AS against the
prima facie conclusion that a forfeiture
has been made by the change Of title,
the counsel for the plaintiff adduce
authorities to the effect that where an
insurable interest remains in the in
sured he may recover although he may
have mortgaged his entire interest, or
even have assigned it in trust or con-
ditionally
His Honor quoted several authori.
ties therefor, but said these cases do
not cite the clauses in the policy or
any clauses corresponding in terms OF
import with those which are expressed
in the policy in the present case. An
argument based upon the general prin-
ciple that the company is liable so long
| a- 80. ....,xoI1., ,ctcroet ~ ~ oo,,tfo hla
interest remains in the insurer, would
not apply to the case of contract in.
Guiding express provisions for forfeiture
in the event Of any transfer, made with
out the consent of the company, and
endorsement on the policy following
the assignment Of the property.
1t would appear that modern insur
ance policies and the one in this case
had expressly guarded against the doc
trine of insurable interest The clause:
in the defendant company's policy, or
which are based the nonsuit are as fol
lows If any change takei
place in the title or possession Of tn,
property whether by sale, transfer, con
veyance, legal process, etc, o
il the assured is not the sole, absolute
and unconditional owner of the pro
perty insured then and il
every such case this policy shall b.
void"
l understand, His Honor said, tina
the second condition quoted expresse
the state of facts which must exist whel
the policy is issued. Now has an
change taken place in the title by tn
Execution OF the bill of sale to W. A
Whiting In its terms it is an absc
lutte conveyance TO him Of the propert
covered by the insurance. Giving
/ the most favorable construction aske
for by the plaintiff, that it is a cor
ditional sale, an unrecorded chat,
mortgage, il the instrument has an
effect, and is not a mere futility,
must be held that the title of Nj
Michiels was changed thereby. II
was no longer the unconditional owner
Mr. Whiting held title upon whic
he could make valid sale to thir
party having no notice Of any equitie
in the case. The terms used IN tn
clause are very comprehensive. An
change in the title, by sale or transfer
In the Michigan case cited il is sal
the words transfer or "change" {
title are more comprehensive than III
word "sae." A sale is upon a valu'
BILE consideration, bet there may be
transfer or change of title without
sale.
Upon the most favorable constru'
ton to be given to this bill of sale III
plaintiff has violated an express cond
ton Of his contract and thereby T,
, leased the defendant.
The motion for nonsuit is su
tanned.
Counsel for the plaintiff noted exec
tons to this ruling.
The Court then discharged the jul
from further consideration of the cas-
Counsel gave notice to the Cou
that the two other cases of the plai
: tiff against insurance companies wou
e await the proceedings on appeal,